Jurors chat, defense asks for mistrial in probation fraud case

Friday

Jun 20, 2014 at 5:16 PMJun 20, 2014 at 5:19 PM

By Andy MetzgerState House News Service

BOSTON -- Defense attorneys in the probation case pushed for a mistrial Friday after a witness revealed he had discussed the case with another witness who had been a friend of his in the department. The judge took the motion under advisement and had not ruled on it late Friday.

As the defense tried to press its theory that a clique of malcontents within the probation department had seen their prospects improve after Commissioner John O’Brien’s ouster, defense attorney William Fick learned he had been a subject of conversation between two witnesses.

“What’s been discussed is you, in terms of what attorneys are aggressive,” said Ed Dalton, a former regional administrator in the probation department, who said he and Ellen Slaney, a former probation official, had talked during her multi-day testimony at the outset of the trial, about the “600 sidebars” and other “logistics” of the weeks-long trial.

After the jury left for a midday break, Stellio Sinnis, another attorney for O’Brien, said he wanted to “push” for a mistrial, and Judge William Young said he would take it under advisement.

Sequestration orders generally prohibit witnesses from talking to each other about the case.

Former Probation Commissioner John O’Brien and two of his former deputies, Elizabeth Tavares and William Burke, are charged with rigging hiring in the department to benefit politically connected applicants, a scheme that prosecutors claim was hatched around the time O’Brien became commissioner.

Dalton had been passed over for promotion to deputy commissioner by O’Brien, and testified Friday he had been pressured into manipulating the scores of job interviews and at one point was directed to keep two people from being moved on to the final round. He said he was not happy when Tavares told him to make sure two people did not make the cut the night before February 2005 intermediate interviews with candidates for assistant chief probation officer at Barnstable District Court.

“I swore a bit because I was livid,” said Dalton.

“As you were losing your composure, she was calm and responding to you calmly,” said Tavares’s attorney Brad Bailey.

Though he said he told no one but his wife until an investigation into the department was launched in 2010, Dalton recorded answering machine messages left for him by Janet Mucci, the personnel director, giving him names of candidates to advance and discussing the reasons they had to be favored.

In October 2000, Mucci left a message praising Dalton and telling him he needed to advance Doug MacLean, the son of a former senator from Fairhaven, and five other favored candidates for a position at a Dedham court.

“Jack was sort of praising you in there today. Now don’t fall of your shoes laughing – but saying at that, but he was saying something about you doing a good job getting people on for finalists or something. I think that’s what he was talking about. Anyway, so, now that I’ve just beefed you up a little bit, you’ve got to do this,” according to a recording played for the jury and posted on the Boston Herald’s website. In a chatty, half-whispered follow-up message that appears to lay out a quid pro quo, Mucci said, “Jack had had a meeting at the State House yesterday, or the day before, and I guess that triggered a lot of this. You know, and he got everything he wanted this year in the budget, moneywise. So they feel like they did that for him, and obviously he needs to do this for them.”

In December 2000, Dalton said O’Brien demanded to know why he had failed to advance MacLean to the final round for positions in Dedham and Falmouth, and Dalton told him it was because of a criminal record MacLean discussed in his interview. O’Brien later appointed MacLean to a position at a New Bedford family court.

In January 2001, Dalton said he had been reprimanded by former probation official Fran Wall, now a key prosecution witness, who Dalton said told him “the commissioner wasn’t happy” about his failing to advance certain candidates. Dalton stopped sitting on hiring panels until about 2005.

Dalton said the two candidates Tavares told him to block were left off his list of finalists because they did not do well in their interviews and said he did not pass along any directive about them to the two other interview panelists, Judge Joseph Reardon and David Park, the court’s chief probation officer.

Under questioning by Bailey, Dalton said one of the disfavored candidates, Joseph Zavatsky, had performed poorly on four audits, which are shared with the commissioner’s office, and Dalton believed the other, Barry Nunes, lacked some traits necessary for leadership in the department.

When one of the commissioner’s favored candidates missed his 11:20 a.m. interview and didn’t show up until about 2 p.m., when the candidate thought he was scheduled to be interviewed, Dalton said he tried to delay the proceedings, and then wanted to interview him in the afternoon, but Reardon, citing his own prior experience as town counsel in Mashpee, said that could create problems.

The candidate who arrived late, Elzy Tubbs, was a probation officer in charge at the local Office of Community Corrections, and Dalton said he would have done the same for anyone else because it was possible the candidate had been given the wrong interview time.

After Tavares called Reardon, according to Dalton, a new panel was convened with Judge Rosemary Minehan and without Dalton’s participation. That spring, former probation official Wall reassigned Dalton and his friend Slaney, who previously testified she had resisted efforts to rig panels, telling them they would have to conduct audits around the state rather than participating in hiring. Dalton said he believed he was being “punished.”

Dalton was testy under cross examination from Fick, who led off with suggestions that Dalton never supported O’Brien, and questioned who he knew to obtain a high-ranking security position at Fenway Park. Dalton said he has two World Series rings from the Red Sox job, which dates back to before his 2010 retirement from probation.

“Why, do you want tickets?” Dalton quipped when Fick asked him about his work for the Red Sox. The Jamaica Plain resident who said he worked 39 years in probation frequently scoffed before answering and sometimes sought to correct Fick before acquiescing to the attorney’s assertions.

“Do you find these proceedings amusing?” Fick asked. Dalton said he did not.

Dalton acknowledged that he had wanted Ron Corbett to be the commissioner when O’Brien received the post in 1998, and said that when Slaney succeeded Corbett as acting commissioner after O’Brien was suspended in 2010, he received the position of acting director of OCC at $454 per day in addition to his pension, which is now roughly $91,000 per year.

Dalton insisted that Court Administrator Harry Spence had been the determining factor for that job, interviewing him after Slaney gave him the appointment without an interview.

Fick also delved into Dalton’s own employment history, which dates back to the time when presiding judges made appointments in their own courts, and when numerous witnesses have testified that patronage was a major factor in court hiring.

When he applied to be a full-time probation officer at Norfolk Superior Court, Dalton, who was born in South Boston in 1946, listed former Sen. Arthur Lewis, a Boston Democrat and “friend,” according to his application. In 1983, former Senate Ways and Means Chairwoman Patricia McGovern appeared on one of Dalton’s applications for promotion and members of the Legislature were apprised in writing from probation officials of his job moves.

Dalton said he knew former Attorney General Scott Harshbarger had called O’Brien on his behalf in his unsuccessful application for a promotion to deputy commissioner.

At the urging of Corbett, Dalton said he met with Chief Justice of Administration and Management Robert Mulligan at his home in Wellesley in 2006 and talked to him in general terms about the rigged hiring.

Dalton said Mulligan “indicated he was aware” and “felt that his hands were tied.”